The Law Tribune previews important or interesting cases most weeks that the state Appellate Court or the state Supreme Court are in session.

Case: Mirielle Desrosiers v. Diageo North America, et al.

Court: Supreme Court

Date: Jan. 15

Time: 11 a.m.

Attorneys: John Bochanis, Kenneth Gage

Summary: A woman who claims she was fired from her job because of a perceived disability and not an actual disability is challenging rulings by a trial judge and the Appellate Court, both of which dismissed the claim on grounds that state statutes protect only those discriminated against for actual disabilities.

Background: Mirielle Desrosiers began working for Fairfield County-based Diageo North America in 1993. Within her particular department in the company, she was the only black employee. After working for the company for about a decade, she claims her new boss went out of her way to single her out and pick on her more so than her colleagues.

Desrosiers is of Haitian heritage and her boss often complained that she could not understand what Desrosiers was saying. The boss allegedly often made Desrosiers rewrite emails and criticized her communication skills.

In the fall of 2004, Desrosiers was placed on a 90-day probationary period following a poor review. She claims to not have previously received poor reviews.

By November 2004, a company manager told her she was no longer on probation and that her work progress was satisfactory. Desrosiers then used her fourth of four allotted vacation weeks that year — company policy barred vacation time from being carried over to the next year. Upon her return, Desrosiers told her manager that she needed surgery on a tumor on her right shoulder. She asked if a date in January 2005 was OK. Her supervisor agreed.

The next day, the supervisor let Desrosiers leave early to pick up her child, whose school had early dismissal due to inclement weather. The boss asked Desrosiers to call into work once she got home. When Desrosiers did so, she was fired over the phone.

In a subsequent meeting after the termination, a human resources person told Desrosiers that she was fired for not successfully completing her probationary period. Desrosiers then hired a lawyer and sued the company for discrimination based upon race, color, age, and physical disability, including perceived physical disability. The latter allegation was apparently linked to Desrosiers’ announcement to her supervisor that she needed surgery.

The trial court granted summary judgment in favor of her employer with regard to the alleged perceived disability claim, finding that Connecticut does not recognize a cause of action for discrimination based on a perceived physical disability. A jury trial was held on the remaining counts, resulting in a defense verdict. Desrosiers appealed, arguing that a claim for discrimination based on a perceived physical disability exists under Connecticut law.

The Appellate Court, however, disagreed with her, affirming that state statute protects only those who actually have some type of physical disability. The woman again appealed and the Supreme Court has agreed to hear the case.

In a debate dissecting state statutes, the plaintiff’s lawyer, John Bochanis, of Daly, Weihing & Bochanis in Bridgeport, argues that state statute already protects claims for discrimination based on a perceived disability.

“The defendant’s interpretation of the statute would prohibit discrimination against employees who are actually disabled pursuant to the statutory definition of physical disability, but allow employers to discriminate against employees considered to be disabled but were not,” Bochanis wrote in his brief to the justices. “This application of the statute would be contrary to the legislative intent of a comprehensive approach to eliminate disability discrimination and the remedial purpose of the statute.”

Chicago lawyer Kenneth Gage is defending Desrosier’s employer. Gage says whether or not the state acknowledges a claim for perceived disability is irrelevant to this case. “Plaintiff presented no evidence to suggest that anyone at Diageo perceived her to be physically disabled,” wrote Gage. “There is no evidence reasonably to suggest that anyone at Diageo at any time perceived her condition to be a chronic physical handicap, infirmity or impairment.”

The state Commission on Human Rights and Opportunities has submitted a friend of the court brief siding with the employee.

“Holding people liable for their intent to discriminate makes good policy,” wrote Charles Krich, principal attorney for the CHRO. “A discriminatory practice is proven by showing that an individual intended to discriminate. The intent to discriminate is the same whether the physical disability is real or perceived. An employer who is wrong about whether the employee has a disability should not be able to benefit from its misconceptions.”

Disagreeing with the CHRO’s public policy argument is the Connecticut Business Industry Association, which submitted an amicus brief to the Supreme Court through attorneys Michael Soltis and Justin Theriault, of the Stamford office of Jackson Lewis. The business group argues that the trial court and appellate court interpreted state statutes correctly.

“If policy considerations could trump statutory language, the confidence of the public, including employers, in state labor and employment laws would erode,” the Jackson Lewis lawyers stated. “Needless litigation would ensue; the cost of being a Connecticut employer would increase. No public policy favors this outcome.”•